TUJUAN SESSION v. THE STATE OF TEXAS

Court of Appeals of Texas, Dallas.

No. 05–11–01192–CRNo. 05–11–01193–CR

Decided: May 1, 2012

Before Justices Moseley, Lang–Miers, and Murphy

MEMORANDUM OPINION

Opinion By Justice Moseley

In two companion cases, a jury convicted Tujuan Session of unlawful possession of a firearm by a felon and aggravated assault of a public servant with a deadly weapon. In two appeals, which we consider together, Session raises the same two issues: (1) the evidence was insufficient to prove he engaged in conduct that constituted a threat to the complaining witness and (2) the trial court erred by including a definition of reasonable doubt in the jury charge. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App. P. 47.2(a), 47.4. We overrule Session's two issues in both cases and affirm the trial court's judgments.

In his first issues, Session argues the evidence was insufficient because “[n]o rational jury could have found [Session's] conduct with the assault rifle in question constituted a threat to Officer Pacheco.” In reviewing the sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex.Crim.App.2010). We defer to the jury's credibility and weight determination because the jury is the sole judge of the witnesses' credibility and the weight to be given to their testimonies. Brooks, 323 S.W.3d at 899 (citing Jackson, 443 U.S. at 319, 326); see also Tex.Code Crim. Proc. Ann. art. 38.04. Thus, we do not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the jury. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999).

We first consider Session's point with respect to his conviction for aggravated assault of a public servant. The jury heard evidence that the Dallas police department received a call about a man carrying an assault rifle. Several officers responded and, after the caller pointed to Session as the man with the rifle, the officers pursued Session on foot and via car. Two officers, Officer Marcill Ford and Officer Luis Pacheco, found Session hiding behind two trash cans. Ford testified: “[Session] just stands up [from behind the trash cans] with the assault rifle like this (demonstrating), turning his back to us like he's ignoring our commands and then he starts heading towards the door [of a nearby house]. As he's doing that, he turns the rifle towards Officer Pacheco (demonstrating).” At trial, Pacheco testified that Session “turned back with the rifle, aimed it at me ․” After pointing the rifle at Pacheco, Session entered the house. Eventually, the police extracted Session from the house and took him into custody. The police searched the house and found the assault rifle.

While acknowledging Ford's and Pacheco's testimonies in his brief, Session argues (without any citation to the record) that he was not pointing his gun at Pacheco; rather, he argues that as he ran into the house, “he carried the rifle [and] lowered it from it's [sic] vertical position toward the horizontal, and looked back toward the officers[,] rotating his body in their direction along with the gun.” Additionally, he asserts Pacheco's testimony is colored because “Officer Pacheco was acting and reacting to a life and death event.”

Session's arguments are not for us to resolve—it was within the jury's province to make credibility and weight determinations and we will not substitute our judgment for the jury's. Dewberry, 4 S.W.3d at 740. Viewed in the light most favorable to the verdict, the evidence, including Pacheco's and Ford's testimonies, is legally sufficient for a jury to find beyond a reasonable doubt that Session threatened Pacheco with serious bodily injury when he aimed his assault rifle at Pacheco. See Tex. Pen.Code. Ann. § 22.02(a)(2) (West 2011) (defining aggravated assault).

With respect to Session's conviction for unlawful possession of a firearm by a felon, we find Session's first issue to be a non-sequitor. Whether a rational jury could have found that Session threatened Officer Pacheco is irrelevant to Session's conviction for being a felon in unlawful possession of a firearm. See Tex. Pen.Code Ann. § 46.04(a)(1); Bates v. State, 155 S.W.3d 212, 216 (Tex.App.—Dallas 2004, no pet. )(elements of unlawful possession of a firearm by a felon). We overrule Session's first issues.

In his second issues, Session asserts the trial court erred by including a definition of reasonable doubt in the jury charge. The jury charge in the aggravated assault case included the following instruction: “It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all ‘reasonable doubt’ concerning the defendant's guilt.” 1 This Court previously considered this instruction and concluded it does not define “reasonable doubt.” O'Canas v. State, 140 S.W.3d 695, 702 (Tex.App.—Dallas 2003, pet. ref'd); accord Bates v. State, 164 S.W.3d 928, 931 (Tex.App.—Dallas 2005, no pet.). We overrule Session's second issues.

Having resolved Session's two issues in both appeals, we affirm the trial court's judgments.

JIM MOSELEY

JUSTICE

Do Not Publish

Tex.R.App. P. 47

111192F.U05

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

TUJUAN SESSION, Appellant

No. 05–11–01192–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the Criminal District Court Number Five of Dallas County, Texas. (Tr.Ct.No. Cause No. F10–56869–L).